DAR File No. 39960

School and Institutional Trust Lands, Administration

Rule R850-50

Range Management

Notice of Proposed Rule

(Amendment)

DAR File No.: 39960
Filed: 11/25/2015 11:25:16 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes to this rule will provide the agency with the tools to better administer the grazing program.

Summary of the rule or change:

Changes to this rule address: 1) establishing a fee of $10 per animal unit month (AUM) when grazing permits are assigned; 2) amendments to give the agency the tools needed to better manage grazing on trust lands and to deal with permittees found in violation of the rules; and 3) make minor cosmetic changes in order to better conform to standards outlined in the Rulewriting Manual for Utah (12th Edition), published by the Division of Administrative Rules.

State statutory or constitutional authorization for this rule:

• Subsection 53C-1-302(1)(a)(ii)
• Subsection 53C-2-201(1)(a)
• Section 53C-5-102

Anticipated cost or savings to:

the state budget:

There are no anticipated additional costs or savings to the state budget as a result of these changes. The agency will receive an increase in revenue as a result of setting the $10 per AUM fee when grazing permits are assigned, but cost to the agency for administering the program will remain the same. The only state entity which holds grazing permits is the Division of Wildlife Resources (DWR) and they don't assign their permits so the $10 per AUM fee will not affect them.

local governments:

Local government entities do not hold any grazing permits, so there would not be any cost or savings to them.

small businesses:

No grazing permits are held by small businesses so there are no anticipated costs or savings to them.

persons other than small businesses, businesses, or local governmental entities:

There will be an increase in costs to persons other than small businesses, businesses, or local government entities, if they choose to assign their grazing permit to another entity. In the past, there was a set $30 fee to assign a permit; where with this rule change, a permittee will pay $10 per AUM to assign the permit. The additional cost to the permittee will depend on the number of AUMs they assign.

Compliance costs for affected persons:

The cost for affected persons to comply with these rule changes will vary depending on the number of AUMs they assign. If they are assigning 100 AUMs at $10 per AUM, the cost would be $1,000.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule will have a business impact on the livestock industry. Because of this impact, administration staff worked with the industry over the course of the year to find ways to implement the rule in a way that would cause the least harm. Ultimately, the rule allows the administration to capture market value for the sale of trust resources, consistent with its constitutional and statutory mandates.

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
AdministrationRoom 500
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• Kim Christy at the above address, by phone at 801-538-5183, by FAX at 801-355-0922, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2016

This rule may become effective on:

01/21/2016

Authorized by:

Kevin Carter, Director

R850. School and Institutional Trust Lands, Administration.

R850-50. Range Management.

R850-50-100. Authorities.

This rule implements Sections 6, 8, 10, and 12 of the Utah Enabling Act, Articles X and XX of the Utah Constitution, and Sections 53C-1-302(1)(a)(ii) and 53C-5-102 which authorize the Director of the School and Institutional Trust Lands Administration to establish rules prescribing standards and conditions for the utilization of forage, the qualifications of a grazing permittee, and related [development]improvement of range resources on trust lands.

 

R850-50-150. Planning.

1. Pursuant to Section 53C-2-201(1)(a), the issuance of grazing permits [within this category of activity ]carries no planning obligations by the agency beyond existing rule-based analysis and approval processes.

2. Range improvement projects authorized pursuant to this section carry the following planning obligations beyond existing rule-based analysis and approval processes:

(a) [To]to the extent required by the Memorandum of Understanding [between]with the State Planning Coordinator [and the School and Institutional Trust Lands Administration], the agency shall submit the proposal for review by the Resource Development Coordinating Committee (RDCC); and

(b) [Evaluation of]evaluate and [response]respond to comments received through the RDCC process.

3. Applications for modified grazing permits which do not involve surface disturbing activities are governed by paragraph 1, above. Applications for modified grazing permits which involve surface disturbing activities are subject to the planning obligations set forth in paragraph 2, above.

 

R850-50-200. Grazing Management.

1. Management of trust lands used for grazing purposes is based upon [grazing]carrying capacity which permits optimum forage utilization and seeks to maintain or improve range conditions.

2. [Grazing]Carrying capacity shall be established after consideration of historical stocking rates, forage utilization, range condition, trend , and climatic conditions.

3. In order to fulfil its constitutional mandate to its beneficiaries, the agency may set, and change, at its discretion, season of use, duration (time) of use, and intensity of use, as well as numbers, distribution, and kind of livestock which are allowed by a grazing permit.

 

R850-50-300. Applications.

1. [Unless land has been withdrawn from grazing or has been determined to be unsuitable for grazing,]Grazing permit applications [shall]may be accepted [for grazing rights upon]on all trust lands not otherwise subject to a grazing permit unless the land has been withdrawn from grazing or has been determined to be unsuitable for grazing.

2. [School and institutional trust]Trust lands may be [declared]deemed unsuitable for grazing if it is determined that :

(a) range conditions [are]render it incapable of supporting economic grazing practices ;

(b) [or if ]grazing would substantially interfere with another [trust land ]use that is better able to provide for the support of the beneficiaries[.]; or

(c) the agency's management costs would be excessive.

3. The determination to accept grazing permit applications is at the sole discretion of the director.

 

R850-50-400. Permit Approval Process.

[Applications shall be accepted on lands available for permitting under R850-50-300 or upon termination of an existing permit as follows:]

1. On trust lands that are [open and ]unpermitted and which are available for grazing, applications may be solicited through [advertising or ]any [other ]method the agency determines [is ]appropriate, including notification of adjacent landowners and other permittees in an allotment.

2. On trust lands subject to an expiring grazing permit, competing applications shall be accepted from April 1 to April 30, or the next working day if either of these days is a weekend or holiday, of the year in which the permit terminates.

(a)[.] All expiring and canceled grazing permits shall be posted on the agency's website by January 1 of the year in which the permit expires or the year after the permit was canceled. The website notice shall include any reimbursable investment made by [the]an existing permittee on a range improvement. Notice that expiring grazing permits may be found on the agency's website may also be published.

(b)[.] Grazing permits issued on trust lands acquired through an exchange with the federal government (after the expiration of the federal permit) shall not be subject to the provisions of this rule for two successive 15-year terms unless the permit has been sold or otherwise terminated.

3. [The]A person holding an expiring grazing permit shall have the right to renew the permit, provided that no competing applications are received, by submitting a completed application along with the first year's rent and other applicable fees.

4. Persons desiring to submit a competing application must do so on forms acceptable to the agency. Forms are available at the offices listed in R850-6-200(2)(b) or from the agency's website. Applications [shall]must include :

(a) a non-refundable application fee[,];

(b) a one-time bonus bid[,]; and

(c) an amount determined by the agency pursuant to R850-50-1100(7), which will be required to reimburse the holder of an authorized range improvement project should the competing application be accepted.

5. Bonus bids and range improvement reimbursements shall be refunded to unsuccessful applicants. Upon establishment of the yearly rental rate, the successful applicant shall be required to submit the first year's rental and other required fees.

[5]6. Applications shall be evaluated by the agency and may be accepted only if the agency determines that the applicant's grazing activity will not create unmanageable problems of trespass, range and resource management, or access.

(a) For purposes of this evaluation, adjoining permittees and lessees, adjoining property owners, and adjoining federal permittees may be considered acceptable as competing applicants unless specific problems are [clearly ]demonstrated.

(b) Applicants not meeting the requirements in (a) above, whose uses would not unreasonably conflict with the uses of other permittees in the area, may nevertheless be accepted if the size of the grazing area, the access to the grazing area, and other factors demonstrate that the applicant is able to utilize the area without adverse impact on the range resources, adjoining lands, or beneficiaries of affected trust lands.

(c) For purposes of evaluating an applicant's acceptability [for]as a grazing [permit]permittee, the agency may consider :

(i) the applicant's ability to maintain any water rights appurtenant to the lands described in the application[.];

(ii) the applicant's ownership of private land in the area;

(iii) the applicant's ownership of grazing privileges in the BLM or Forest Service allotment where the trust land is located;

(iv) the type and number of livestock owned by the applicant; and

(v) management costs to the agency should the application be approved.

[6]7. The holder of a permit which is expiring, on which a competing application has been received, shall have a preference right to permit the property provided he agrees to pay an amount equal to the highest bonus bid submitted by a competing applicant.

(a) In the event that the existing permittee fails to match the highest bonus bid, the permittee may be refunded the value of the amount the permittee contributed to the cost of any approved range improvement project at the expense of the successful bonus bid applicant.

(b) In the event that all, or a portion of, the property on which a bonus bid was submitted is sold, exchanged, or otherwise made unavailable, the permittee shall receive the refund of a prorated amount of the bonus bid based on the AUMs lost to the use of the permittee.

 

R850-50-500. AUM Assessments and Annual Adjustments.

1. An annual assessment shall be charged for each AUM [used by livestock on trust lands]authorized by the agency. This assessment shall be established by the board and shall be reviewed annually and adjusted if appropriate.

2. [Grazing fees]The annual assessment for lands designated as "'High Value Grazing Lands" will be [assessed ]at a higher [rate]amount than trust lands not so designated. High Value Grazing Lands are typically, but not necessarily, contained in a named land block. Blocked or scattered lands may be designated as High Value Grazing Land through a Director's Finding.

3. In the event that the agency acquires High Value Grazing Lands through an exchange with the federal government, the application of the agency's [grazing fees]annual assessment to the holders of grazing privileges on the acquired land shall be phased in over a five-year period in equal increments after the term of the federal permit has expired.

4. The application of the agency's [grazing fees]annual assessment on lands acquired through an exchange with the federal government, and not designated as High Value Grazing Lands, shall be phased[-]in over a three-year period in equal increments after the term of the federal permit has expired.

5. Failure to pay the annual assessment within the time prescribed shall automatically work a forfeiture and cancellation of the permit and all rights thereunder.

 

R850-50-600. Grazing Permit Terms.

1. Grazing permits shall be issued for a maximum of 15 years and shall contain the following:[. Every grazing permit issued under these rules shall include the following terms and conditions:]

[1.](a) [Terms]terms, conditions, and provisions that shall protect the interests of the trust beneficiaries with reference to securing the payment to the agency of all amounts owed[.];

[2.](b) [Terms]terms, conditions, and provisions that shall protect the range resources from improper and unauthorized grazing uses[.]; and

[3.](c) [Other]other terms, conditions, and provisions that may be deemed necessary by the agency or board in effecting the purpose of these rules and not inconsistent with any of its provisions.

[4]2. The agency may cancel or suspend grazing permits, in whole or in part, after 30 days ' notice by certified mail to the permittee when:

(a) [for ]a violation of the terms of the permit, or of these rules, including trespass as defined in R850-50-1400, has occurred;

(b) [or upon the issuance of ]a lease or permit has been issued for the permitted property, the purpose of which the agency has determined to be a higher and better use[,];

(c) [or disposal of the trust land. Failure to pay the required rental within the time prescribed shall automatically work a forfeiture and cancellation of the permits and all rights thereunder]the agency has disposed of the permitted property; or

(d) any management problems arise as defined in R850-50-400(6).

[5. Locked gates on trust land without written approval are prohibited. If such approval is granted, keys shall be supplied to the agency and other appropriate parties requiring access to the area as approved by the agency, including those with fire and regulatory responsibilities.

6. Supplemental livestock feeding on trust grazing lease lands may be permitted subject to written authorization by the agency with the designation of a specific area, length of time, number and class of livestock, and subject to a determination that this shall not inflict long term damage upon the land. The agency may assess an additional fee for authorized supplemental feeding. Emergency supplemental feeding shall be allowed for ten days prior to notification.]

 

R850-50-700. Reinstatements.

Trust land on which a grazing permit has been cancelled and which is ineligible for reinstatement pursuant to R850-5-500(1)(c) may be advertised as available pursuant to R850-50-400(2). If [the advertisement does not bring forth any competing applications, or if ]the agency does not advertise the property, the person previously holding the permit may apply for a new permit by submitting an application and all applicable fees.[including a fee equal to the reinstatement fee.]

 

R850-50-800. Grazing Permits--Legal Effect.

1. [Grazing permits transfer no ]A grazing permit transfers neither right, title, or interest in any lands or resources[held by the agency], nor any exclusive right of possession and grants only the authorized utilization of forage.

2. Locked gates on trust land, without written approval, are prohibited. If such approval is granted, keys shall be supplied to the agency and other appropriate parties requiring access to the area as approved by the agency, including those with fire and regulatory responsibilities.

 

R850-50-900. Non-Use Provisions.

1. The granting of non-use [for trust lands ]shall be at the discretion of the agency.[The following criteria shall apply to all non-use requests:]

[1]2. [The permittee shall submit an application]Applications for non-use must be submitted in advance or, if the trust land is within a federal grazing allotment, as soon as notification of non-use is received from the applicable federal agency.

3. [The request ]Applications for non-use must [shall ]be accompanied by the [applicable ]application fee and by any [appropriate ]documentation which is the basis for the request. In the event [of ]the non-use application is approved , [grazing non-use, fees ]any annual assessment paid for the year [shall not be waived or refunded but ]shall be applied to the permittee's next year 's annual assessment.

[2]4. Non-use shall not be approved for periods of time exceeding one year except when the director finds that a longer period of time would be in the best interests of the beneficiaries.

[3. Non-use may be approved in times of emergency conditions.]

[4]5. Non-use for personal convenience with no payment of [fees ]the annual assessment shall not be approved.

 

R850-50-1000. Assignment and Subleasing of Grazing Permits.

1. Permittee shall not assign, [partially assign,]or sublease, in whole or in part, [mortgage, pledge, ]or otherwise transfer, dispose of, or encumber any interest in [the ]a permit without the written consent of the agency. To do so shall automatically, and without notice, work the forfeiture and cancellation of the permit.

2. The approval of a sublease shall be subject to the following restrictions:

[2.](a) An annual assessment equal to 50% of the difference between the base AUM assessment established under R850-50-500, and the AUM payment received by the permittee through the sublease, multiplied by the number of AUMs subleased, or a $1.00 per AUM minimum assessment, whichever is greater, shall be charged for the approval of any sublease.[The approval of any sublease shall be subject to the following restrictions:]

[(a)](b) [Consent for subleasing shall only be given if the sublease is compatible with the best interests of the beneficiaries and long-term management of the land and will not unreasonably conflict with the interests of other permittees in the area.]Applications to sublease a grazing permit shall only be approved after a determination that the sub-lessee meets the requirements of R850-50-400(6).

[(b) Subleases in-lieu of a collateral assignment shall not be approved.]

(c) [No sublease shall be effective ]Sublease approvals are valid for a maximum period of [for more than ]five years.

3. The approval of an assignment shall be subject to the following restrictions:

(a) [An additional fee based upon either the fair market value of the permit or a flat fee per AUM may be charged for the approval of any assignment or partial assignment.]A determination that the assignee meets the requirements of R850-50-400(6).

(b) A payment, based on the number of AUMs transferred multiplied by $10.00, shall be paid to the agency prior to the approval of any assignment or partial assignment. Assignments made for no consideration in money, services, or goods, to include inter vivos or testamentary assignments made to immediate family members (parents, spouse, children, grandchildren, and full siblings) and assignments from and to business entities wholly owned by an immediate family member or members, may be exempt from this additional payment. In such cases, a minimum assignment fee as listed on the Master Fee Schedule shall be assessed.

(c) For purposes of this rule, a shareholder or member of a grazing association or cooperative shall be deemed a permittee and subject to the requirements of R850-50-1000(3)(a). In order to facilitate the enforcement of this rule, each grazing association or cooperative shall submit a list of all members to the agency annually prior to June 30. This list shall include each member's contact information and the number of AUMs allowed.

4. [Mortgage agreements or collateral assignments are ] The agency's consent to allow a mortgage agreement or collateral assignment is for the convenience of the permittee.

5. The [term of a ]mortgage agreement or collateral assignment shall :

(a) not exceed the remaining term of the permit[.]; and

(b) contain an acknowledgment by the lender that the grazing permit is cancellable pursuant to R850-50-600(2) and R850-50-1000(1) and that the agency assumes no liability in providing such consent.[If the grazing permit is renewed, the permittee may also renew the mortgage agreement or collateral assignment of the permit pursuant to these rules.]

 

R850-50-1100. Range Improvement Projects.

1. [Range Improvement Projects ]Applications for range improvement projects shall be submitted for approval on appropriate [application ]forms[. Range Improvement Projects] and shall be approved or denied by the agency based on a written finding.

2. [All]A range improvement [activity ]project must be approved by the agency in writing before construction begins. Line cabins and similar structures will not be authorized as range improvement projects. They may, however, be authorized by a special use lease pursuant to R850-30.

3. Agency authorization for range improvement projects shall be valid for periods of time not to exceed two years from the date the applicant is notified of the authorization. Extensions of time may be granted only [in extraordinary circumstances.]when the director finds that an extension of time would be in the best interests of the beneficiaries.

4. Range improvements constructed or placed upon trust land [without prior approval shall ]become the property of the agency.

5. Range improvements shall not be authorized if they would be:

(a) located on a parcel that the agency has determined has potential for sale, lease , or exchange and the possibility exists that improvements may encumber these actions[.];

(b) located on a parcel designated for disposal[.];

(c) [a project or structure that does not fill a critical need or enhance the value of the resource.]unnecessary or uneconomical as determined by the agency; or

(d) determined by the agency to be ordinary maintenance.

6. Range improvements which are necessary to rehabilitate lands whose forage production has been diminished by poor grazing practices or poor stewardship of the permittee shall not be considered a reimbursable improvement but rather a requirement to keep the grazing permit in effect.

7. Authorized Range Improvement Projects :

(a) shall be depreciated using schedules consistent with typical schedules published by the USDA Natural Resources Conservation Service or any other depreciation schedules approved by the board[.]; and

(b) do not grant any vested property interest to the permittee.

8. In the event that the property , on which an approved range improvement [project ]is located is sold, exchanged, or withdrawn from use, the permittee shall receive no more than the amount the permittee contributed towards the original cost of the range improvement project, minus the indicated depreciation amount; or in the alternative, [shall ]may be allowed 90 days to remove improvements pursuant to [section]Section 53C-4-202(6).

[8]9. If the range improvement project is designed to increase carrying capacity, the permittee shall agree to pay for the increase in AUMs annually starting no later than two years after project completion. The agency may allow any increase in fees to be phased[-]in at 20% per year.

[9]10. The agency may participate in [cost-sharing ]the cost of designated range improvement projects, or maintenance of existing range improvement projects, by providing funding in amounts and at rates determined by the agency.

[10]11. The agency's cost/share portion of the project may be in the form of project materials. In these instances, the permittee shall be required to provide all necessary equipment and manpower to complete the project to specifications required by the agency.

 

R850-50-1200. Additional Leases.

If the agency determines that there is unused forage available on a parcel of trust land resulting from temporary conditions, it may issue an additional permit or permits. These permit(s) shall be issued in accordance to R850-50-400. Existing permittees shall have a first right of refusal to unused forage.

 

R850-50-1300. Rights Reserved to the Agency.

In all grazing permits , the agency shall expressly reserve the right to:

1. issue mineral leases, special use leases, timber sales, materials permits, easements, rights-of-entry , and any other interest in the trust land[.];

2. issue permits for the harvesting of seed from plants on the trust land. If loss of use occurs from harvesting activities, a credit for the amount of loss shall be made to the following year's assessment[.];

3. enter upon and inspect the trust land or to allow scientific studies upon trust land at any reasonable time[.];

4. allow the public the right to use the trust land for purposes and periods of time permitted by policy and rules. However, nothing in these rules purports to authorize trespass on private land to reach trust land[.];

5. require that all water rights on trust land be filed in the name of the [trust ]agency and to require express written approval prior to the conveyance of water off trust land[.];

6. require a permittee, when an agency-owned water right is associated with the grazing permit, to ensure that the water right, to the extent allowed under the permit, is maintained in compliance with state law[.];

7. close roads for the purpose of range or road protection, or other administrative purposes[.];

8. dispose of the property without compensation to the permittee, subject to R850-50-1100(7)[.]; and

9. terminate a grazing permit in order to facilitate management pursuant to R850-50-200 or for higher and better uses of trust lands.

 

R850-50-1400. Trespass.

1. Unauthorized activities which occur on trust land shall be considered trespass and damages shall be assessed pursuant to 53C-2-301. These activities include:[, but are not limited to:]

(a) [The]the use of forage at times and at places not authorized [in]by the permit[.];

(b) [The placement of numbers of livestock on the trust land which, if left on the trust land for the length of time allowed in the permit, would result in]The use of forage [being used ]in excess of that authorized by the permit[.];

(c) [Grazing]grazing or trailing livestock on or across trust land without a valid permit or right-of-entry[.];

(d) [The]the dumping of garbage or any other material on the trust land[.]; and

(e) allowing another person to graze or trail livestock on the permitted property without the express written consent of the agency.

2. The permittee shall cooperate with the agency in taking civil action against the owners of trespass livestock [on trust lands ]to recover damages for lost forage [or]and other [values]damages.

 

R850-50-1500. Trailing Livestock Across Trust Land.

1. The trailing of livestock across trust land by a person not holding a grazing permit may be authorized if no other reasonable means of access is available.

2. Written approval in the form of a right-of-entry shall be obtained in advance from the agency.

3. The authorization to trail livestock across trust land shall restrict and limit the route, the number and type of animals, and the time and duration, which shall not [to ]exceed two consecutive days , of the trailing.

 

R850-50-1600. Modified Grazing Permit.

1. At the discretion of the director, the agency may issue modified grazing permits in instances where the proposed use is grazing related but is more intensive than livestock grazing alone and when improvements, if any, are primarily temporary in nature. Such uses may include[, but are not limited to, uses authorized under R850-30-300(1)(d),] camps, corrals, feed yards, irrigated livestock pastures, or other related uses.

[2. Modified grazing permits may be approved pursuant to the following process:

(a) Applications for modified grazing permits shall be submitted pursuant to R850-3.

(b) Applications, if accepted, shall be accompanied with an application fee equal to the application fee for special use leases.

(c) Applications shall be evaluated pursuant to R850-3-400 and R850-50-400.]

[3]2. Modified grazing permits shall be subject to the following terms and conditions:

(a) The term of a modified grazing permit shall be no longer than 15 years and contain terms, conditions, and provisions the agency, in its discretion, deems necessary to protect the interest of the trust beneficiaries.

(b) A modified grazing permit is subject to cancellation pursuant to R850-50-600[(4)](2).

(c) [Annual]The annual rental for a modified grazing permit shall be based on the fair market value of the permitted property. Fair market value of the permitted property and annual rental rates shall be determined by the agency pursuant to R850-30-400. Periodic rental reviews may be completed pursuant to R850-30-400[(4)](5).

(d) Upon cancellation of the modified grazing permit,[:

i) ] the permittee shall be allowed 90 days to remove [approved temporary range improvements;]any personal property.[and

ii) at the discretion of the director, the agency may reimburse the permittee for approved permanent range improvements pursuant to R850-50-1100; or

iii) the permittee shall be allowed 90 days to remove approved permanent range improvements.]

(e) Prior to the issuance of a modified grazing permit, or for good cause shown at any time during the term of the modified grazing permit, the applicant or permittee[, as the case may be,] may be required to post [with the agency ]a bond with the agency in the form and amount as may be determined by the agency to assure compliance with all terms and conditions of the permit. Any bond posted pursuant to this rule is subject to R850-30-800(2) through (4).

 

R850-50-1700. Supplemental Feeding.

1. Supplemental livestock feeding may be permitted subject to:

(a) written authorization by the agency;

(b) the designation of a specific area, length of time, number, and class of livestock; and

(c) a determination that this shall not inflict long term damage upon the property.

2. The agency may assess an additional fee for authorized supplemental feeding or may require the permittee to obtain a modified grazing permit.

3. Emergency supplemental feeding shall be allowed for ten days prior to notification.

4. The forage used for supplemental feeding shall be certified weed free.

 

KEY: administrative procedures, range management

Date of Enactment or Last Substantive Amendment: [August 11, 2015]January 21, 2016

Notice of Continuation: June 27, 2012

Authorizing, and Implemented or Interpreted Law: 53C-1-302(1)(a)(ii); 53C-2-201(1)(a); 53C-5-102